The plaintiff then said that as this was happening the train had already started, he could hear the brakes (Black AB 13).
10 In cross-examination, it was put to the plaintiff that he had deliberately jumped on to the line either with the intention of committing suicide or of getting across to the other platform before the train moved off . He denied these accusations. It was also put to him that the story that he had tripped on the uneven platform was untrue; that he had made quite a different statement to police officers on 8 August 1995 while still in hospital. The high point of the claimed difference in this statement (which I do not think has the significance the defendant claims) was that it was recorded in a constable's notebook that the plaintiff had said "I lost my balance and fell on to the tracks" (Blue AB 268).
11 In regard to the allegations that had been made against the plaintiff in cross-examination, other witnesses called in the plaintiff's case testified to conversations in which the plaintiff had said that the reason for his fall was that:
" ... he'd stumbled and ... kicked his toe or his foot on something and fell over ... " (Mr D. Gray, plaintiff's solicitor, two days after the accident, Black AB 168);
... he went to turn and ...tripped or stubbed his toe on the uprise in the concrete and just went straight over" (Mr J. Plummer, de facto husband of plaintiff's sister Michelle, about three days after the accident, Black AB 100);
" his toes got caught on the footpath. It was - it was unlevel there or something and his toes got caught then. That's what's made him trip and fall on to the tracks " (plaintiff's sister Michelle, about three days after the accident, Black AB 104);
" near the edge of the platform he tripped [on what] he'd said it was a bit of concrete, bit of cement that wasn't quite even. The platform wasn't quite even and he tripped on that " (Ms C. Moore, plaintiff's de facto wife, three or four days after accident, Black AB 108);
" near the front of the train and tripped on some pothole or something " (Mr B. Luckwell (brother) four or five days after the accident, p 4, extract of transcript 29 July 1998);
" he tripped " (Mr M. Luckwell, (brother) about nine days after the accident, Black AB 65, 80).
12 At the trial, counsel for the defendant objected to the giving of this hearsay evidence, and its allegedly wrongful admission became the fifth of the heads of appeal I have listed. However, it was plainly admissible under s 64(3) of the Evidence Act 1995, nor do I think that in the circumstances it could be said that the trial judge was wrong in refusing to exercise in the defendant's favour any of the discretions given to the court by ss 135 and 136 of that Act.
13 At the trial, there were three witnesses in particular upon whom the defendant relied to counter the evidence in the plaintiff's case about the way in which he came to fall upon the track. The first of these was the train driver, Mr Dowman. His evidence was both oral and by two statements (Ex D13 made on the night of the accident (Blue AB 279 and Ex D14 (Blue AB 280) made on 14 September 1995).
14 The first of the statements came into existence when a police officer spoke to Mr Dowman, and recorded in his notebook that Mr Dowman said:
" ... I then departed. I observed this guy close to fence as he approached train, he took a right turn and jumped in front of me. " (Blue AB 279)
15 In his September statement Mr Dowman said he had noticed the plaintiff walk past the leading car along the platform ahead of the train; he (Mr Dowman) had then sounded his train whistle, released the train brakes, applied power and proceeded to work the train towards the next station; as the train drew near the plaintiff, "he suddenly without warning jumped in front of my train into the four foot [that is between the rails]". Mr Dowman then applied the emergency brakes, saw the plaintiff pass under the leading carriage "before coming to a stand, approximately half a car past the point of impact". After taking all the necessary steps to deal with the emergency, Mr Dowman waited for a relief driver to arrive and then "went home in a state of complete shock" due to which he was given a medical certificate for one week off work.
16 In his evidence in chief at the trial, Mr Dowman repeated the account he had given in his statement, to the point where he released the brakes and started to power up. He then continued:
" As we were departing, we got down towards the six car mark, the gentleman was walking down the platform, suddenly turned right, took two steps and jumped, or appeared to jump, in front of the train. I applied the ... brake ... We came to a stand about half a car past ." (Black AB 201 )
17 In cross-examination Mr Dowman was asked to go again over his memory of what he saw when the plaintiff went from the platform to the track. He said:
" ... he turned right, took what appeared to be two steps then jumped into the what we call four foot.
Q. When you say jumped, can I suggest this to you sir that you saw him walking along, same direction you were going?
A. Uh hmm.
Q. He turned in a clockwise direction?
A. Yes.
Q. So that he was facing towards the track?
A. That's correct.
Q. He appeared to you to jump?
A. That's what he appeared to do, yes.
Q. And what you saw I suggest to you could just as easily have been a man who was - who'd lost his step, or had lost his footing?
A. I don't know what his intentions were.
Q. And as a result of that, fell onto the track?
A. I don't know, I couldn't say. He appeared to jump.
Q. But that is certainly an explanation of what you saw isn't it?
A. It might be.
NO RE-EXAMINATION. " (Black AB 206)
18 With Mr Dowman in the driver's compartment at the time of the accident was another train driver, travelling as a passenger, Mr P. Goulding. He made no written statement about the accident either in 1995 or at any time until July 1998 (the first day of the trial was 27 July 1998). His account in his evidence in chief at the trial was similar to Mr Dowman's. His description of how the plaintiff got on to the track was as follows:
" The plaintiff then took two steps towards the edge of the platform and a third step off the platform on to the tracks and laid down. " (Black AB 195)
19 The trial judge asked Mr Goulding how far the train had travelled from the time it started to the time it stopped, to which he answered "About 30 metres" (Black AB 197).
20 At the end of his cross-examination Mr Goulding gave the following evidence:
" Q. I suggest to you that what you saw was consistent with a man who lost his balance and fell in front of the train?
A. Not from where I as sitting, no.
Q. When he lay - you said he lay down on the track?
A. Yes.
Q. That I suggest to you is consistent with his having laid down on the track to try and avoid being struck? That'd be right wouldn't it?
A. I couldn't say.
NO RE-EXAMINATION " (Black AB 199)
21 The third witness relied on by the defendant at the trial for an account of how the plaintiff got on to the track was Mr A. Kassa, the guard whose post was in the guard's compartment at the rear of the fourth and last carriage of the train. (The carriages were twenty metres long, so that Mr Kassa was at least eighty metres away from the plaintiff when he moved from the platform to the tracks.)
22 In a statement made to the defendant's central service control superintendent about two weeks after the accident Mr Kassa said that he had seen the plaintiff walking along the platform approximately two metres from the platform edge and that he "turned quickly and taking two steps he jumped in front of the train and disappeared" (Blue AB 277).
23 In his evidence at the trial Mr Kassa said he saw the plaintiff up at the head of the train on the platform and that "... he took about two steps to the right towards the train and disappeared from my sight" (Black AB 185-6).
24 It was on the basis of the evidence given by Messrs Bowman, Goulding and Kassa that the trial judge was asked to reject the plaintiff's account of how he fell. The trial judge, however, said he found the plaintiff to be "a particularly frank and honest, indeed, pragmatic witness" (Red AB 15) and he accepted his account of his fall to the tracks. He further expressed the opinion that the evidence of the witnesses relied upon by the defendant was not basically inconsistent with that of the plaintiff but an account of the same events viewed and remembered somewhat differently.
25 In the defendant's appeal in this court, it was submitted that the trial judge was wrong in the view he had taken of the facts concerning the plaintiff's getting on to the tracks. I do not think this submission can succeed. It seems to me that there was ample evidence before the trial judge upon which he could properly reach the factual conclusion which he did. Even if, from a reading of the appeal papers, my own view about the facts were different, (which it is not) the trial judge's findings now challenged by the defendant fall into the category with which an appellate court should not interfere: Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306. The findings contested by the defendant were in my opinion well within the area of fact finding which was the province of the trial judge and I do not see any sign of the kind of error the defendant would have to demonstrate before this court would interfere with the judge's findings.
26 Another factual matter concerning the plaintiff's fall on to the tracks, disputed by the defendant in the appeal, was the trial judge's finding about which part of the platform it was that the plaintiff fell from. Expert evidence had been put before the trial judge to the effect that a particular part of the platform, from which the expert had been instructed the plaintiff fell, was unsafe. The trial judge concluded that the part of the platform the subject of the expert's evidence was not the part of the platform from which the plaintiff fell. He reached this conclusion on the basis of the evidence of one of the defendant's witnesses, Mr Aliendi, who at the time of the accident had been the defendant's service control superintendent for the area which included Glenfield Station.
27 Mr Aliendi was called to Glenfield Station immediately after the accident. When he got there, the plaintiff was still lying alongside the train which was in the position in which it had stopped after hitting him. Mr Aliendi noted a number of details about the accident in his notebook while at the scene. The page of the notebook became Exhibit D10 (Blue AB 270). On one line he noted "41-960KM 41-963". He explained in his evidence that "41-960KM" was where the plaintiff was struck and "41-963" was where he was lying. Mr Aliendi called these numbers "kilometrages". He said that there were a number of stanchions holding up overhead power lines at the station and that there was a kilometrage number on each stanchion, recording the number of kilometres that stanchion was distant from Central Station, Sydney. He said that there had been a stanchion "just very close by" where the accident had happened. Very shortly before the trial, and in preparation for it, Mr Aliendi had gone to Platform 3 and had caused a number of photographs to be taken there. One was of himself standing near the edge of the platform at a point which he said he fixed by reference to the kilometrages he had noted on the evening of the accident.
28 This photograph, MFI 6, became part of Exhibit D3 (Blue AB 257) and became the basis for a step essential to the trial judge's conclusion. He accepted Mr Aliendi's evidence as the best evidence of where the accident happened. Mr Aliendi had also given evidence that the condition of the platform at the time when MFI 6 was taken was "pretty much" as it had been at the time of the accident (Black AB 162). He also agreed that the photograph showed about a quarter of an inch difference between the height of the bitumen and the concrete at a point a little north from where he was standing. He also accepted that some persons could trip and lose balance because of the difference in height (Black AB 211). The trial judge commented on this evidence, saying that on his viewing of the photograph he thought the difference in height referred to by Mr Aliendi was more in the order of six tenths of an inch than Mr Aliendi's quarter of an inch. It was on the basis of the photograph and Mr Aliendi's evidence about it that the trial judge found that where the plaintiff fell a ridge had been present at the joint between the concrete edge and the bitumen surface (Red AB 18).
29 This aspect of his Honour's reasoning became the subject of the most sustained attack in the defendant's submissions. It was said that the photograph did not justify the judge's finding that at the point where Mr Aliendi was standing there was a difference in height of six tenths of an inch between the concrete and the bitumen. It was also said that the plaintiff had not established where he fell, and on that account alone, his case must fail.
30 To my mind, it was clearly open to the trial judge to take the view of the height of the ridge which he did. Alternatively, if his six tenths of an inch estimate was too high, it nevertheless seems to me quite clear that he was entitled to find, taking his general acceptance of the plaintiff's evidence together with his view of the photograph, that there was sufficient of a ridge there to have caused the plaintiff to fall after stumbling on it. In substance, the trial judge's factual finding was in my opinion well within his scope as the judicial officer with the primary function of making findings of fact in the litigation.
31 There is a further basis for not interfering with this central finding of fact of the judge. Although a number of photographs of Glenfield Station were in evidence, showing a number of different views of it, the stanchions from which Mr Aliendi had taken the kilometrages recorded in his notebook were never identified. It seems unlikely that the plaintiff fell exactly opposite one stanchion and came to rest exactly opposite the other. I do not think the acceptance by the trial judge of Mr Aliendi's evidence meant that he accepted that his position in the photograph must show exactly the spot where the plaintiff fell. It seems to me, accepting Mr Aliendi's evidence in full, that the spot where he is standing in the photograph can only be accurate within a tolerance of something like three metres to the north or the south. Bearing that in mind, along with the trial judge's acceptance of the plaintiff's evidence that he had tripped where the bitumen was lower than the concrete (and assuming also that in light of Mr Aliendi's evidence the trial judge had not accepted the plaintiff's estimate of three inches) I do not see any basis for interfering with the trial judge's finding of fact.
32 In reaching his conclusions the trial judge did not deal in detail with the evidence relied upon by the defendant at the hearing but in my opinion quite sufficiently indicated why he did not draw from it the conclusions contended for by the defendant.
33 For the reasons I have so far given I think the defendant's appeal on the matters falling under heads 1 and 2 of the seven earlier listed, fails.
34 As to head 3, that the trial judge found in the plaintiff's favour on a case different from that put forward on his behalf, it seems to me that the basis of the trial judge's decision was fully open to him on the materials before him and that it involved issues which had been fully contested by the defendant before him. I see no reason why he should not have proceeded in the way that he did.
35 Head 4 concerned evidence which had been given about incidents that had happened involving the plaintiff and his relatives in the course of their train travel from Cabramatta to Glenfield. Witnesses outside the family group gave varying accounts of different aspects of these incidents, which on the whole, were contested by the various family members. The judge took the view that the incidents themselves had nothing to do with the plaintiff's claim, and in this, with respect, he was obviously right. He must also have formed the view that to sift through the different accounts of the incidents in order to decide upon the credibility of the various witnesses in the plaintiff's case would not be of particular assistance to him in deciding whether the plaintiff's account of his fall and injury should be accepted. This seems to me to have been a view quite open to him. His approach does not seem to me in any way to vitiate his fact finding on the essentials of the case.
36 As to Head 5, (wrongful admission of evidence), I do not think I need add to what I have already said in par 12. The defendant's submission, in my opinion, fails.
37 Head 6 raised the question of contributory negligence. There was some debate in the appeal on the question whether, since the trial judge appeared to have regarded the defendant's duty as arising from contract and not from tort, the defendant could argue contributory negligence in the appeal. For the defendant it was submitted that because of an agreement allegedly reached at the trial, the defendant must in fairness be allowed to raise the question of contributory negligence, notwithstanding what the law would otherwise be.
38 It does not seem to me to be necessary to decide upon the availability of contributory negligence to the defendant. The trial judge considered the matter and gave reasons which, in light of the way he decided the question of the defendant's liability, seem to me to be perfectly sound, for concluding that the plaintiff had not been guilty of any contributory negligence. I would not interfere with his conclusion on this aspect of the matter.
39 Head 7 raised the question whether the trial judge had sufficiently explained his reasons for reaching his conclusions in favour of the plaintiff. On my reading of his two sets of reasons, they cause no difficulty in understanding the line of thought which led him to decide the defendant was liable to the plaintiff. It does not matter if parts of the reasoning are brief, if it is clear what the reasoning is. The trial judge indicated why he did not think it was plausible that the plaintiff, when he got on to the tracks, had either been attempting to kill himself or to cross the tracks in front of the train. He indicated how he had taken the evidence of the various witnesses into account in reaching that conclusion.
40 In my opinion, this head of the defendant's appeal also fails.
41 My conclusion therefore is that the trial judge's finding of liability against the defendant should not be disturbed.
42 This leaves the question of damages.
43 The figure for damages was arrived at by the trial judge by reference to five elements which he itemised as follows:
(a) Non economic loss
The trial judge allowed 65% of a most serious case $168,350.00